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NRL News
Page 16
Fall 2011
Volume 38
Issue 8

CPCs Fight Back against NARAL-Inspired Attacks

By Dave Andrusko

First Resort, a Bay Area pro-life pregnancy counseling and state-licensed health clinic, has filed an important First Amendment suit against a “deeply flawed” ordinance which First Resort alleges violates its constitutionally protected rights to free speech.

Passed by the San Francisco Board of Supervisors in October, the “Pregnancy Information Disclosure and Protection Ordinance” covers only two pregnancy centers—Alpha Pregnancy Center and the much larger First Resort—and purports to protect women “seeking information regarding options to terminate a pregnancy” from receiving “untrue or misleading” information. The ordinance was signed into law by Mayor Ed Lee in early November. First Resort flatly denies it is either misleading women or is “interfering” with a woman’s right to secure an abortion.

Fifteen hundred miles away, responding to a lawsuit filed against them on November 6, officials from the city of Austin, Texas, agreed to temporarily put on hold an ordinance that forces pro-life pregnancy centers to post signs in English and Spanish declaring that they do not provide abortions, abortion referrals, and other services. Centers that do not post the signs faced financial penalties and possible contempt of court charges.

Three pro-life organizations—the Alliance Defense Fund, the Texas Center for the Defense of Life, and Jubilee Campaign’s Law of Life Project—went to bat for Austin LifeCare, challenging the ordinance on First Amendment grounds, the basis on which similar harassment ordinances have been struck down.

With the parties’ agreement Federal District Court Judge Lee Yeakel ordered the case to be stayed at least until February 3, 2012, when the parties will provide a status update to the court. That agreement also puts the lawsuit on hold.

Ordinance Purpose Is ‘Destruction’

The campaign against Crisis Pregnancy Centers is proudly led by NARAL. However, each time one of the ordinances has made it to court judges have slapped it down, including in the cities of Baltimore and New York and in Montgomery County, Maryland.

But that didn’t stop the San Francisco board of supervisors. In an overheated August 2 press release San Francisco City Attorney Dennis Herrera claimed the ordinance was necessary because “the delays these centers can cause interfere with women’s time-sensitive, constitutionally protected right to reproductive choice.”

But as First Resort noted in its lawsuit, “In approving the Ordinance, the Board neither received evidence that alleged advertising by a [pregnancy resource center] had ever caused a woman to lose her ability to choose an abortion or any particular abortion procedure nor made legislative findings that such an event had ever occurred.” In fact, according to the lawsuit, First Resort has safeguards in place to ensure there would be no delay.

Filed in the United States District Court in San Francisco, First Resort’s lawsuit fairly steams with indignation at what the woman-helping center asserts is an ordinance bereft of legislative findings or underlying evidence to support the claim that First Resort is misleading women or providing them with false evidence. The lawsuit asserts the ordinance is a blatant example of viewpoint discrimination intended to “chill” First Resort’s right to free speech, adding, “The purpose of the Ordinance is to destroy or minimize First Resort’s ability to communicate with women who are or may be considering abortion.”

At the core of the legal complaint is who the ordinance excludes from its liability and enforcement provisions—“all pregnancy centers, including the City of San Francisco itself,” that “provide or provide referrals to clients for … abortions.” Thus, by design, the ordinance exempts all but persons and organizations the city regards as having “anti-abortion” or pro-life views.

The supervisors took this questionable step even though there was plenty of advice in advance that they were on shaky legal ground.

Back in September two supervisors pointedly complained that no record of deception has been demonstrated. Their concern was no doubt in part a reflection of their briefing in which supervisors were told “that in order to mount a strong defense against a likely legal challenge, the city would have to produce a record of false and misleading advertising,” according to the San Francisco Examiner’s Dan Schreiber.

“The best legislative backers could come up with were reviews on Yelp and a search on Google when people plugged in the phrase ‘abortions in San Francisco’ and Plunkett’s First Resort organization popped up as the second link,” the Examiner reported. “This legislative record here, to me, is empty,” Supervisor Sean Elsbernd said.

In the end there was only one dissenter, Elsbernd. At the October 18 meeting, he said, “There has been no testimony, no documentation, no affidavits of any woman seeking service who has been misled. There is nothing in the record documenting that.” He added, “What I hear we are doing today is passing a solution in search of a problem.”

Elsbernd also pointed to the cities where similar laws were struck down or are in the process of being challenged. After First Resort filed its lawsuit, he told the San Francisco Chronicle, “We knew there would be litigation over this … but the City Attorney should defend the ordinance.” However, Elsbernd added, “I’ll wait until after the trial to say, ‘I told you so.’”